[Federal Register Volume 59, Number 214 (Monday, November 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27446]


[[Page Unknown]]

[Federal Register: November 7, 1994]


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SECURITIES AND EXCHANGE COMMISSION
[Rel. No. IC-20667; File No. 812-9154]

 

DFA Investment Dimensions Group Inc. et al.

October 31, 1994.
AGENCY: U.S. Securities and Exchange Commission (``SEC'' or the 
``Commission'').

ACTION: Notice of application for an order under the Investment Company 
Act of 1940 (the ``1940 Act'').

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APPLICANTS: DFA Investment Dimensions Group Inc. (the ``Fund''), 
Dimensional Fund Advisors Inc. (``DFA''), and certain life insurance 
companies (``Participating Insurance Companies'') and their separate 
accounts (``Separate Accounts'')--the Fund, DFA, the Participating 
Insurance Companies, and the Separate Accounts are referred to herein 
collectively as the ``Applicants.''

RELEVANT 1940 ACT SECTION: Order requested under Section 6(c) of the 
1940 Act for exemptions from Sections 9(a), 13(a), 15(a), and 15(b) of 
the 1940 Act, and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder.

SUMMARY OF APPLICATION: Applicants seek an order to the extent 
necessary to permit shares of the Fund to be offered and sold to 
variable annuity and variable life insurance separate accounts issued 
by both affiliated and unaffiliated life insurance companies.

FILING DATE: The application was filed on August 10, 1994.

HEARING OR NOTIFICATION OF HEARING: An order granting the application 
will be issued unless the Commission orders a hearing. Interested 
persons may request a hearing by writing to the Secretary of the 
Commission and by serving the Applicants (in care of the Fund or DFA) 
with a copy of the request, personally or by mail. Hearing requests 
must be received by the Commission by 5:30 p.m. on November 25, 1994, 
and should be accompanied by proof of service on the Fund or DFA, in 
the form of an affidavit or, for lawyers, a certificate of service. 
Hearing requests should state the nature of the writer's interest, the 
reason for the request, and the issue contested. Persons may request 
notification of a hearing by writing to the Secretary of the 
Commission.

ADDRESSES: Secretary, SEC, 450 Fifth Street, NW., Washington, DC 20549. 
Applicants, c/o Stradley, Ronon, Stevens & Young, Great Valley 
Corporate Center, 30 Valley Stream Parkway, Malvern, PA 19355, Attn: 
Stephen W. Kline, Esq.

FOR FURTHER INFORMATION CONTACT: Patrice M. Pitts, Attorney, Division 
of Investment Management, Office of Insurance Products, at (202) 942-
0670.

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application is available for a fee from the 
Public Reference Branch of the Commission.

Applicants' Representations

    1. DFA is a corporation organized under the laws of Delaware, and 
is registered as an investment adviser under the Investment Advisers 
Act of 1940. DFA serves as investment adviser for the Fund.
    2. The Fund is a Maryland corporation registered under the 1940 Act 
as an open-end, diversified management investment company. The Fund 
currently consists of, and offers shares of common stock (``shares'') 
in, nineteen separate investment portfolios, each of which has its own 
investment objectives and policies. Shares of two of those portfolios 
presently are offered only to a separate account of National Home Life 
Assurance Company which, in connection with its issuance of variable 
annuity contracts, is registered as a unit investment trust under the 
1940 Act.
    3. The Fund intends to offer shares of its portfolios to Separate 
Accounts of additional insurance companies--including insurance 
companies that are not affiliated with National Home Life Assurance 
Company--and to serve as the investment vehicle for various types of 
insurance products, including variable annuity contracts, single 
premium variable life insurance contracts, scheduled premium variable 
life insurance contracts, and flexible premium variable life insurance 
contracts (collectively referred to herein as ``variable contracts''). 
Such Participating Insurance Companies will establish their own 
separate accounts and design their own variable annuity or variable 
life insurance contracts. It is anticipated that Participating 
Insurance Companies will rely on Rules 6e-2 or 6e-3(T) under the 1940 
Act, as appropriate, with respect to their scheduled premium and 
flexible premium variable life insurance contracts; some Participating 
Insurance Companies may rely on individual exemptive orders as well.
    4. The use of a common management investment company as the 
underlying investment medium for both variable annuity and variable 
life insurance separate accounts is referred to herein as ``mixed 
funding.'' The use of a common management company as the underlying 
investment medium for separate accounts of unaffiliated insurance 
companies is referred to herein as ``shared funding.''
    5. Applicants submit that making the Fund available for ``mixed'' 
and ``shared'' funding will encourage more insurance companies to offer 
variable contracts, and that this should result in increased 
competition with respect to both variable contract design and pricing, 
which, in turn, can be expected to result in more product variation and 
lower charges. Applicants submit that ``mixed'' and ``shared'' funding 
should provide several benefits to variable contract owners, including, 
among other things: elimination of a sufficient portion of the costs of 
establishing and administering separate funds; and making a greater 
amount of assets available for investment, thereby promoting economies 
of scale, permitting increased safety through greater diversification, 
and making the addition of new portfolios more feasible.
    6. Applicants see no significant legal impediment to permitting 
``mixed'' and ``shared'' funding. Nor do Applicants believe that 
``mixed'' and ``shared'' funding will have any adverse federal income 
tax consequences. Applicants represent that separate accounts organized 
as unit investment trusts historically have been employed to accumulate 
shares of mutual funds which have not been affiliated with the 
depositor or sponsor of the separate account. Accordingly, Applicants 
request an order of the Commission exempting the Participating 
Insurance Companies and their Separate Accounts (and, as necessary, any 
principal underwriter and depositor of each such Separate Account) from 
Sections 9(a), 13(a), 15(a), and 15(b) of the 1940 Act, and Rules 6e-
2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to 
permit ``mixed'' and ``shared'' funding.

Applicants' Legal Analysis

    1. Applicants request relief under Section 6(c) of the 1940 Act for 
the class of insurers and Separate Accounts investing in the Fund (and 
principal underwriters and depositors of such Separate Accounts). 
Applicants represent that there is ample precedent, in a variety of 
contexts, for granting exemptive relief not only to applicants in a 
given case, but also to members of the class not currently identified 
that may be similarly situated in the future. Applicants further 
represent that such class relief has been granted from a number of the 
provisions of the 1940 Act. Applicants note that the Commission staff 
will have an opportunity to review the compliance by Participating 
Insurance Companies with the conditions of the requested order at the 
time each Separate Account files its registration statement.
    2. Rule 6e-2(b)(15) provides partial exemptions from Sections 9(a), 
13(a), 15(a) and 15(b) of the 1940 Act, only if the separate account is 
organized as a unit investment trust, all of the assets of which 
consist of the shares of one or more registered investment companies 
(``underlying fund(s)'') which offer their shares ``exclusively to 
variable life insurance separate accounts of the life insurer or any 
affiliated life insurance company'' (emphasis supplied). The exemptions 
are not available to a scheduled premium variable life insurance 
separate account that owns shares of an underlying fund that also 
offers its shares to a variable annuity separate account of the same 
insurance company or any unaffiliated insurance company. Nor is the 
relief granted by Rule 6e-2(b)(15) available if the underlying fund 
also offers its shares to separate accounts funding variable contracts 
of unaffiliated life insurance companies. In short, Rule 6e-2 permits 
neither ``mixed'' nor ``shared'' funding.
    3. Rule 6e-3(T)(b)(15) provides exemptions similar to those 
provided by Rule 6e-2(b)(15), only if the separate account is organized 
as a unit investment trust, all of the assets of which consist of 
shares of underlying funds which offer their shares ``exclusively to 
separate accounts of the life insurer, or of any affiliated life 
insurance company offering either scheduled contracts or flexible 
contracts, or both; or which also offer their shares to variable 
annuity separate accounts of the life insurer or of an affiliated life 
insurance company, or which offer their shares to any such life 
insurance company in consideration solely for advances made by the life 
insurer in connection with the operation of the separate account'' 
(emphasis supplied). In short, Rule 6e-3(T) permits mixed funding with 
respect to a flexible premium variable life insurance separate account, 
but it does not permit shared funding.
    4. Section 9(a) of the 1940 Act provides that it is unlawful for 
any company to serve as investment adviser or principal underwriter of 
any registered open-end investment company if an affiliated person of 
that company is subject to a disqualification enumerated in Section 
9(a) (1) or (2) of the 1940 Act.
    5. Rules 6e-2(b)(15) (i) and (ii) and 6e-3(T)(b)(15) (i) and (ii) 
under the 1940 Act provide exemptions from Section 9(a) under certain 
circumstances, subject to the limitations on ``mixed'' and ``shared'' 
funding imposed by the 1940 Act and the rules promulgated thereunder. 
These exemptions limit the application of the eligibility restrictions 
to affiliated individuals or companies that participate directly in the 
management of the underlying registered management investment company.
    6. Applicants state that the partial relief from the requirements 
of Section 9 of the 1940 Act granted in Rules 6e-2(b)(15) and 6e-
3(T)(B)(15), in effect, limits the amount of monitoring necessary to 
ensure compliance with Section 9 to that which is appropriate in light 
of the policy and purposes of Section 9. Applicants state that Rules 
6e-2(b)(15) and 6e-3(T)(b)(15) recognize that neither the protection of 
investors nor the purposes fairly intended by the policy and provisions 
of the 1940 Act requires the application of the provisions of Section 
9(a) to the many individuals in a large insurance company complex, most 
of whom will have no involvement in matters pertaining to investment 
companies in that organization. Applicants further state that Rules 6e-
2(b)(15) and 6e-3(T)(b)(15) recognize that it is unnecessary to apply 
Section 9(a) to individuals in various unaffiliated insurance companies 
(or affiliated companies of Participating Insurance Companies) that may 
utilize the Fund as the funding medium for variable contracts.
    7. Applicants assert that no regulatory purpose is served by 
extending the Section 9(a) monitoring requirements in the event of 
``mixed'' or ``shared'' funding. In this regard, Applicants note that 
the Participating Insurance Companies are not expected to play any role 
in the management or administration of the Fund; those individuals who 
currently participate in the management or administration of the Fund 
will remain the same regardless of which Separate Accounts or insurance 
companies use the Fund. For these reasons, Applicants submit that 
applying the monitoring requirements of Section 9(a) because of 
investment by separate accounts of other insurers would be unjustified 
and would not serve any regulatory purpose. Applicants further submit 
that increased monitoring costs would reduce the net rates of return 
realized by contract owners.
    8. Rules 6e-2(b)(15) and 6e-3(T)(b)(15) give the Participating 
Insurance Companies the right to disregard voting instructions of 
contract holders. More specifically, Rules 6e-2(b)(15)(iii) and 6e-
3(T)(b)(15)(iii) provide partial exemption from Sections 13(a), 15(a), 
and 15(b) of the 1940 Act to the extent those sections have been deemed 
by the Commission to require ``pass-through'' voting with respect to an 
underlying fund's shares.
    9. Rules 6e-2(b)(15)(iii)(A) and 6e-3(T)(b)(15)(iii)(A)(1) provide 
that the insurance company may disregard the voting instructions of it 
owners with respect to the investments of an underlying fund, or any 
contract between a fund and its investment adviser, when required to do 
so by an insurance regulatory authority (subject to the provisions of 
paragraphs (b)(5)(i) and (b)(7)(ii)(A) of Rules 6e-2 and 6e-3(T)).
    10. Rules 6e2(b)(15)(iii)(B) and 6e3(T)(b)(15)(iii)(A)(2)\1\ 
provide that the insurance company may disregard voting instructions of 
contract owners if the contract owners initiate any change in such 
insurance company's investment policies, principal underwriter, or any 
investment adviser (provided that disregarding such voting instructions 
is reasonable and subject to the other provisions of paragraphs 
(b)(5)(ii), (b)(7)(ii)(B) or (b)(7)(ii)(C) of Rules 6e-2 and 6e-3(T)).
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    \1\Applicants represent that the application will be amended 
during the notice period to refer to Rule 6e-3(T)(15)(b)(iii)(A)(2), 
rather than 6e3(T)(b)(15)(iii)(B), in the discussion under the 
heading ``Pass-Through Voting.''
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    11. Applicants represent that in the case of a change in the 
insurance company's investment policies, the insurance company, in 
order to disregard contract owner voting instructions, must make a 
good-faith determination that such a change would violate state law, or 
would result in investments that either would be inconsistent with the 
investment objectives of the separate account or would vary from the 
general quality and nature of investments and investment techniques 
used by other separate accounts of the company or of an affiliated life 
insurance company with similar investment objectives. Applicants 
represent that in the case of a change of an investment adviser, the 
insurance company, in order to disregard contract owners' voting 
instructions, must make a good-faith determination that either: (a) The 
adviser's fees would exceed the maximum rate that may be charged 
against the separate account's assets; or (b) the proposed adviser may 
be expected to employ investment techniques that either (i) would vary 
from the general techniques used by the current adviser, or be used to 
manage the investments in a manner inconsistent with the investment 
objectives of the Separate Account, or (ii) would result in investments 
that vary from certain standards.
    12. Applicants submit that affiliation does not eliminate the 
potential, if any exists, for divergent judgments as to the 
advisability or legality of a change in investment policies, principal 
underwriter, or investment adviser initiated by contract owners. 
Applicants also state that the potential for disagreement is limited by 
the requirements in Rule 6e-2 and 6e-3(T) that the Participating 
Insurance Company's disregard of voting instructions be reasonable and 
based on specific good-faith determinations.

Applicants' Conditions

    If the requested order is granted, Applicants consent to the 
following conditions:
    1. A majority of the directors of the Fund shall consist of persons 
who are not ``interested persons'' of the Fund (as defined in Section 
2(a)(19) of the 1940 Act, the rules promulgated thereunder, and as 
modified by any applicable orders of the Commission). If this condition 
is not met by reason of the death, disqualification, or bona-fide 
resignation of any director(s), then the operation of this condition 
shall be suspended: (a) For a period of 45 days, if the vacancy or 
vacancies may be filled by the directors; (b) for a period of 60 days, 
if a vote of shareholders is required to fill the vacancy or vacancies; 
or (c) for such longer period as the Commission may prescribe by order 
upon application.
    2. The board of directors of the Fund will monitor the Fund for the 
existence of any material irreconcilable conflict between the interests 
of the contract owners of all Separate Accounts investing in the Fund. 
A material irreconcilable conflict may arise for a variety of reasons, 
including: (a) An action by any state insurance regulatory authority; 
(b) a change in applicable federal or state insurance, tax, or 
securities laws or regulations, or a public ruling, private letter 
ruling, no-action or interpretive letter, or any similar action by 
insurance, tax, or securities regulatory authorities; (c) an 
administrative or judicial decision in any relevant proceeding; (d) the 
manner in which the investments of any Fund portfolio are being 
managed; (e) a difference in voting instructions given by variable 
annuity contract owners and variable life insurance contract owners; or 
(f) a decision by an insurer to disregard the voting instructions of 
contract owners.
    3. Participating Insurance Companies and DFA will report any 
potential or existing conflicts to the board of directors. 
Participating Insurance Companies and DFA will provide the directors 
with all information reasonably necessary for them to consider any 
issues raised by such conflicts and, more generally, will be 
responsible for assisting the directors in carrying out their 
responsibilities under these conditions. In addition, each 
Participating Insurance Company will inform the directors whenever 
contract owner voting instructions are disregarded. The responsibility 
to report such information and conflicts to, and to assist, the 
directors will be a contractual obligation of all insurers investing in 
the Fund under their agreements governing participation in the Fund. 
These responsibilities will be carried out with a view only to the 
interests of the contract owners.
    4. If a majority of the board of directors, or a majority of the 
disinterested directors, determines that a material irreconcilable 
conflict exists, then the relevant insurance companies, at their 
expense and to the extent reasonably practicable (as determined by a 
majority of the disinterested directors), shall take whatever steps are 
necessary to remedy or eliminate the material irreconcilable conflict. 
Such steps may include: (a) Establishing a new registered management 
investment company or managed separate account; or (b) withdrawing from 
the Fund or any of its portfolios the assets allocable to some or all 
of the Separate Accounts, and reinvesting such assets in a different 
investment medium (including another portfolio of the Fund), or 
submitting the question as to whether such segregation should be 
implemented to a vote of all affected contract owners and, as 
appropriate, segregating the assets of any appropriate group i.e., 
annuity contract owners or life insurance contract owners of one or 
more Participating Insurance Companies) that votes in favor of such 
segregation, or offering the affected contract owners the option of 
making such a change.
    5. If a material irreconcilable conflict arises because of a 
decision by a Participating Insurance Company to disregard contract 
owner voting instructions, and that decision represents a minority 
position or would preclude a majority vote, then the insurer may be 
required, at the Fund's election, to withdraw the investment in the 
Fund by that insurer's Separate Account; no charge or penalty will be 
imposed as a result of such withdrawal. The responsibility to take 
remedial action in the event of the directors' determination of a 
material irreconcilable conflict and to bear the cost of such remedial 
action shall be a contractual obligation of all Participating Insurance 
Companies under their agreements governing participating in the Fund. 
These responsibilities will be carried out with a view only to the 
interests of contract owners.
    6. For purposes of the condition set forth in paragraphs 4 and 5 
above, a majority of the disinterested directors shall determine 
whether the proposed action adequately remedies any material 
irreconcilable conflict. In no event will the Fund or DFA be required 
to establish a new funding medium for any variable contract. The 
condition (paragraphs 4 and 5) will not be construed to require a 
Participating Insurance Company to establish a new funding medium for 
any variable contract if an offer to do so has been declined by vote of 
a majority of the contract owners adversely affected in a material way 
by the material irreconcilable conflict.
    7. If a material irreconcilable conflict arises because of an 
insurer's decision to disregard contract owner voting instructions and 
that decision represents a majority position or would preclude a 
majority vote, then the Participating Insurance Company may be 
required, at the Fund's election, to withdraw the investment in the 
Fund by the insurer's Separate Account; no charge or penalty will be 
imposed as a result of such withdrawal. The responsibility to take 
remedial action in the event of the determination (by the directors of 
the Fund) of a material irreconcilable conflict, and to bear the costs 
of such remedial action, shall be a contractual obligation of all 
Participating Insurance Companies under their agreements governing 
participation in the Fund. These responsibilities will be carried out 
with a view only to the interest of contract owners.
    8. For purposes of the condition set forth in paragraph 7 above, a 
majority of the disinterested directors shall determine whether any 
proposed action adequately remedies any material irreconcilable 
conflict. The Fund and the Fund's investment adviser will not be 
required to establish a new funding medium for any variable contract. 
Moreover, no Participating Insurance Company shall be required by that 
condition (paragraph 7) to establish a new funding medium for any 
variable contract if any offer to do so has been declined by vote of a 
majority of the contract owners adversely affected in a material way by 
the material irreconcilable conflict.
    9. The determination by the directors of the Fund of the existence 
of a material irreconcilable conflict and the implications of that 
conflict shall be made known promptly, in writing, to all Participating 
Insurance Companies.
    10. Participating Insurance Companies will provide pass-through 
voting privileges to all variable contract owners as long as the 
Commission continues to interpret the 1940 Act to require pass-through 
voting privileges for variable contract owners. Accordingly, 
Participating Insurance Companies will vote shares of the Fund held in 
their respective Separate Accounts in a manner consistent with voting 
instructions timely-received from contract owners. Each Participating 
Insurance Company will vote shares of the Fund held in its respective 
Separate Accounts for which no voting instructions from contract owners 
are timely-received, as well as shares of the Fund which the 
Participating Insurance Company owns, in the same proportion as those 
shares of the Fund for which voting instructions from contract owners 
are timely-received. Each Participating Insurance Company shall be 
responsible for assuring that its Separate Accounts participating in 
the Fund calculate voting privileges in a manner consistent with other 
Participating Insurance Companies. The obligation to calculate voting 
privileges in a manner consistent with all other Separate Accounts 
investing in the Fund shall be a contractual obligation of all 
Participating Insurance Companies under their agreements governing 
participation in the Fund.
    11. The Fund will comply with all provisions of the 1940 Act 
requiring voting by shareholders. More specifically, the Fund will 
either: (a) Provide for annual meetings (except insofar as the 
Commission may interpret Section 16 of the 1940 Act not to require such 
meetings); or (b) comply with Sections 16(a) and 16(c) of the 1940 Act 
and, if and when applicable, Section 16(b) of the 1940 Act. Further, 
the Fund will act in accordance with the Commission's interpretation of 
the requirements of Section 16(a) with respect to periodic election of 
directors, and with whatever rules the Commission may promulgate with 
respect thereto.
    12. The Fund shall disclose in its prospectus that: (a) It is 
intended as a funding vehicle for all types of variable annuity and 
variable life insurance contracts offered by various insurance 
companies; (b) material irreconcilable conflicts between the interests 
of contract owners of all Separate Accounts investing in the Fund may 
arise; and (c) the directors of the Fund will monitor events in order 
to identify the existence of any material irreconcilable conflicts and 
to determine what action, if any, should be taken in response to any 
such conflict. The Fund will notify all Participating Insurance 
Companies that Separate Account prospectus disclosure regarding 
potential risks of ``mixed'' and ``shared'' funding may be appropriate.
    13. If and to the extent that Rules 6e-2 and Rule 6e-3(T) under the 
1940 Act are amended, or Rule 6e-3 under the 1940 Act is adopted, to 
provide exemptive relief from any provision of the 1940 Act or the 
rules promulgated thereunder with respect to ``mixed'' or ``shared'' 
funding on terms and conditions materially different from any 
exemptions granted in the order requested in this application, the Fund 
and/or Participating Insurance Companies, as appropriate, shall take 
such steps as may be necessary to comply with Rules 6e-2, 6e-3(T), or 
Rule 6e-3, as such rules are applicable.
    14. At least annually, the Participating Insurance Companies and/or 
DFA shall submit to the directors of the Fund such reports, materials, 
or data as the directors reasonably may request so that the directors 
may fully carry out the obligations imposed upon the board of directors 
by the conditions contained in this application; said reports, 
materials, and data shall be submitted more frequently if deemed 
appropriate by the directors. The obligations of the Participating 
Insurance Companies to provide these reports, materials, and data to 
the directors of the Fund upon reasonable request shall be a 
contractual obligation of all Participating Insurance Companies under 
their agreements governing participation in the Fund.
    15. All reports of potential or existing conflicts received by the 
directors of the Fund, and all actions by the directors with regard to 
determining the existence of a conflict, notifying Participating 
Insurance Companies of a conflict, and determining whether any proposed 
action adequately remedies a conflict, will be properly recorded in the 
minutes of the directors or other appropriate records. Such minutes and 
other records shall be made available to the Commission upon request.

Conclusion

    For the reasons stated above, Applicants submit that the requested 
exemptions from Sections 9(a), 13(a), 15(a) and 15(b) of the 1940 Act, 
and Rules 6e-2 and 6e-3(T) thereunder are appropriate in the public 
interest and consistent with the protection of investors and the 
purposes fairly intended by the policy and provisions of the 1940 Act. 
Accordingly, Applicants submit that the requested exemptions meet the 
applicable statutory standards of Section 6(c) of the 1940 Act.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 94-27446 Filed 11-4-94; 8:45 am]
BILLING CODE 8010-01-M